COMPUTERS & TECHNOLOGY

Published 4:00 am, Sunday, March 12, 1995

HASTINGS, Minn. - The resounding victory by IBM Corp. and Apple Computer Inc. in a high-profile repetitive stress injury jury trial here last week was stunning in its swiftness and certainty.

The jury's decision, reached in less than four hours, showed how tough it is to sell an increasingly skeptical public on the idea that computer keyboard makers should be held liable for repetitive stress injuries such as carpal tunnel syndrome, which most experts agree have no single cause.

"This is clearly a signal," said P.J. Edington, executive director of the Center for Office Technology in Rosslyn, Va. "The jury clearly saw that faulting manufacturers for RSIs isn't appropriate. There is no scientific evidence linking the injuries with keyboards."

But attorneys for the plaintiffs said that their fight against the industry was far from over, and that eventually they expected to win.

For IBM, Apple and the industry as a whole, the verdict is good news. A loss likely would have meant an increase in the number of RSI suits filed.

"It would have had a tremendous impact on the industry if the decision had gone the other way," said Bruce Lupatkin, an analyst for Hambrecht & Quist in San Francisco.

He termed the verdict "a bit of vindication for common sense."

David LeGrande, an ergonomics specialist for the Communication Workers of America and a supporter of such suits, agreed the decision means fewer suits will be filed.

"And if a handful more are lost (by the plaintiffs), it will be pretty clear that these cases can't be won," he said.

But computer makers are by no means out of the woods. IBM heads to court in Manhattan on Monday to defend another suit. Brought by Marilyn Johnson-Bush, a 32-year-old former drugstore employee, the suit claims she contracted carpal tunnel syndrome through her work on IBM cash registers and computers.

Steven Phillips, a New York-based attorney for Minnesota plaintiff Nancy Urbanski and leader of a national group of lawyers working to make RSIs a mass tort on par with breast implants and the Dalkon Shield, said the verdict was a minor setback. He intends to keep hammering away at the industry.

"I still believe our case is very powerful," said Phillips, who won fame as lead counsel in the big asbestos liability cases of the 1980s and will also represent Johnson-Bush in New York.

"There has been an invariable pattern in these mass tort cases, where the defendants win the first dozen cases, because in the beginning there's always an initial belief of "How could this big industry do something wrong?'

"As time goes on, however, the plaintiffs learn the defense strategies and gain more information, which can be used in ensuing cases.

"What we have won't go away," Phillips said. "And what we get will add to it."

Could hit consumers

Analysts say that scenario, whatever its merits, is valid and could eventually hit consumers in the pocketbook.

"It's possible, because our legal system is so whacked out," Lupatkin said. "It's not about truth and justice anymore, it's about putting money in the pockets of big-shot attorneys.

"Ultimately," he added, "the industry would have greater incentive to settle out of court, and the costs would be passed on to consumers."

Between 1,000 and 3,000 RSI suits are pending in the country, including about 360 against IBM.

Although RSIs are not limited to work with computers, the growing number of injuries has caused a stir in the industry.

The U.S. Bureau of Labor Statistics reported 302,000 new cases in 1993, responsible for 60 percent of workplace illnesses.

During the past several years computer makers have spent millions on RSI-prevention research.

"Clearly, the manufacturers want to address this, because they want consumers to use their products," Edington said.

Industry observers say that most makers have considered placing warnings on keyboards. But the companies worry that, with pending litigation and an estimated 60 million keyboards already in use, warnings could appear to be an admission of guilt that might hurt them in court.

However, a new tilted keyboard, marketed by Microsoft as a partial solution to RSIs, carries a warning label. Other computer makers, including IBM, have quit making keyboards altogether.

Apple won't stop production

Apple has no plans to discontinue production of keyboards or to use warning labels, spokeswoman Betty Taylor said.

The trial in this small town just south of St. Paul gained national attention as the first RSI jury trial against the nation's two most visible computer giants. In the only other such case, a Texas jury last year found in favor of defendant Compaq Computers.

Phillips' group chose its fight carefully, heading for a county court in a liberal state noted for its support of the little guy.

Their client was a likeable 30-year-old former school secretary who claimed that her work on Apple and IBM keyboards had caused injuries to her hands and wrists, which left her unable to work or perform basic household chores, such as tying her children's shoes.

They subpoenaed documents from the companies and brought in dozens of expert witnesses to support charges that the companies knew of the potential RSI risks of computer keyboards, and were negligent in failing to warn consumers about those risks.

During the course of the trial, they received an undisclosed monetary settlement from Apple's attorneys for failing to disclose in-house videos and documents relating to RSIs - information Phillips said he would use later. (The jury was instructed to rule on Apple's responsibility anyway.)

But in the end, Urbanski's lawyers couldn't convince the jury of a scientific link between her injuries and the design of those keyboards - or even that she was truly injured.

IBM, which spent a reported $2.5 million mounting its defense, and Apple argued that there is no link between the two, and that the companies therefore had no obligation to warn consumers about potential dangers.

"Her keyboard use may have precipitated her symptoms, but it didn't cause her injuries," juror Russ Rancourt said. "Nobody could prove the design was bad."

Urbanski has not yet decided whether to appeal.

There is no love lost between the two sides, and IBM attorney Michael Cerussi was predictably happy with the result.

"They had as clear and full of a shot, with the best experts and documentation, that they could have had in any court in this land, and the jury turned them out in 3-1/4 hours," Cerussi said. "I expect that Mr. Phillips and company are going to have to reassess this entrepreneurial venture they have started, this attempt to stir this up as mass tort litigation."

Growing public frustration

Observers said the verdict might reflect a growing public frustration with a system where plaintiffs get multimillion-dollar awards for everything from spilling hot coffee to getting hit by a baseball while playing the game.

Even Congress, the great, slow barometer of the public mood, is now working on legislation to limit product liability suits.

"It's unclear to me whether this verdict reflects the merits of this particular case, or the mood of the country toward these types of cases in general," said Louis Slesin, publisher of VDT News, a newsletter that deals with computer ergonomics issues.

But jurors said they left convinced that RSIs were caused by a variety of factors, including work environment and the use of chairs, desks and keyboard trays.

Experts in the field agree.

"The research shows that it's not just the keyboard (that causes RSIs)," Slesin said. "It's how you sit, how many breaks you take, the height of your desk, the amount of stress in your job."

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If anyone is to blame, LeGrande added, it is probably employers. Studies have shown a high correlation between workplace stress and RSI incidents. But workers' compensation laws make it almost impossible to sue employers for work-related injuries.

Edington compared RSIs to tennis elbow, and said computer operators needed to use common sense.&lt;

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